Ex Parte AlbersDownload PDFPatent Trial and Appeal BoardJul 24, 201813765279 (P.T.A.B. Jul. 24, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/765,279 02/12/2013 29344 7590 07/26/2018 ONELLO & MELLO LLP Three Burlington Woods Drive Suite 203 Burlington, MA 01803-4532 FIRST NAMED INVENTOR Oliver Albers UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. LFT-029 1016 EXAMINER PASCUA, JES F ART UNIT PAPER NUMBER 3782 NOTIFICATION DATE DELIVERY MODE 07/26/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mail@omiplaw.com docketing@omiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte OLIVER ALBERS Appeal2017-007519 Application 13/765,279 1 Technology Center 3700 Before PHILIP J. HOFFMANN, TARA L. HUTCHINGS, and ALYSSA A. FINAMORE, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner's rejection of claims 1, 6, 7, 9, 11, 12, 15, 16, 18, and21-29. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. According to Appellant, the "invention relates to reusable containers for holding or carrying food, and[,] more particularly[,] to portable, 1 According to Appellant, "[t]he real party in interest is ... Luft Industrie, Inc." Appeal Br. 2. Appeal2017-007519 Application 13/765,279 handheld[,] reusable pouches for carrying food." Spec. ,r 1. Claims 1, 9, and 18 are the independent claims on appeal. We reproduce claim 1, below, as illustrative of the appealed claims. 1. A flexible pouch, comprising: a closed bottom section; vertical walls extending up from the bottom section to form an internal storage volume having an opening opposite the bottom section; and a closure mechanism including a plurality of projecting members and a plurality of receiving members dispersed around upper sections of the vertical walls proximal to and below the opening, wherein, in a closed state, the projecting members and the receiving members removably couple to at least partially close the opening, and wherein: the receiving members comprise stretchable holes formed in the upper sections of the vertical walls, and the projecting members comprise post and stop combinations extending directly from an inner surface of the vertical walls, wherein the stop has a greater width than a corresponding receiving member stretchable hole and comprises a compressible material that enables compressed passage through the corresponding receiving member stretchable hole. 2 Appeal2017-007519 Application 13/765,279 REJECTIONS AND PRIOR ART2 The Examiner rejects the claims as follows: I. claims 1, 6, 7, 21, 24, and 25 under 35 U.S.C. § I03(a) as unpatentable over Schwarzkopf (US 3,376,618, iss. Apr. 9, 1968); II. claims 9, 11, 12, 15, 16, 22, 26, and 27 under 35 U.S.C. § I03(a) as unpatentable over Schwarzkopf and Perrette (US 2007/0031071 Al, pub. Feb. 8, 2007); and III. claims 18, 23, 28, and 29 under 35 U.S.C. § I03(a) as unpatentable over Wertheimer (US 1,434,576, iss. Nov. 7, 1922) and Miller (US 2,253,571, iss. Aug. 26, 1941). ANALYSIS Rejection I As set forth above, independent claim 1 recites, in relevant part, [a] flexible pouch ... comprising ... a closed bottom section[,] vertical walls extending up from the bottom section to form an internal storage volume[,] . . . and a closure mechanism including a plurality of projecting members and a plurality of receiving members[,] ... wherein ... the projecting members comprise post and stop combinations extending directly from an inner surface of the vertical walls. Appeal Br., Claims App. (Claim 1 ). Appellant argues that the rejection is in error because, among other reasons, "[i]n Schwarzkopf, ... head portion [3] extends from a diaphragm of ... head member 1 attached to the bag, not directly from an internal surface of a vertical wall of the bag" (id. at 9), and 2 In the Answer (Answer 2-3), the Examiner withdraws an indefiniteness rejection from the Final Office Action (Final Action 2-3). 3 Appeal2017-007519 Application 13/765,279 "Schwarzkopf requires that ... head portion 3 extend from ... diaphragm 4 such that the head portion does not extend beyond the outer surface of ... edge portion 5. Therefore, ... head portion 3 could not [be modified to] extend directly from the pouch of Schwarzkopf' (id. at 11 ). In response, the Examiner finds that Schwarzkopf . . . [discloses] that "each snap fastener may be produced as an integral part of a handle or similar object" ( emphasis added). It is clear that Schwarzkopf contemplated the snap fasteners may be integral with a portion of the bag other than just the handle. It is this alternative construction of the snap fastener disclosed in Schwarzkopf . . . [ upon which the Examiner] relied . . . , in part, in the Final Office [ A ]ction. F[igures] 8 and 10 of Schwarzkopf are further relied upon in the Final Office [ A ]ction (page 4, first paragraph) as showing that it was known in the art to extend an analogous projecting member (33) directly from the inner surface of a diaphragm-like portion, wherein the projecting member and the diaphragm-like portion are integrally formed with the vertical walls of the pouch. It is noted, that [ A Jppellant' s remarks are silent with respect to F[igures] 8 and 10 of Schwarzkopf, as applied in the Final Office [ A ]ction. Therefore, it is maintained that it would have been obvious . . . to integrally form the projecting member and diaphragm-like portions of the Figs. 3 and 4 embodiment in Schwarzkopf with the vertical walls of the pouch, as in Schwarzkopf ( column 3, lines 69-7 4 and the Schwarzkopf embodiment of Figs. 8 and 10). Answer 4--5. We agree with Appellant, however, that the figures the Examiner references appear to "show an embodiment where the snap fastener [that includes the head portion 3] ... is still a separate collection of parts added to the bag. [These figures] do not include 'post and stop combinations extending directly from an inner surface of the vertical walls,' as in claim 1." Reply Br. 3. Appellant's Specification explains that 4 Appeal2017-007519 Application 13/765,279 [i]t will be understood that when an element is referred to as being "on" or "connected" or "coupled" to another element, it can be directly on or connected or coupled to the other element or intervening elements can be present. In contrast, when an element is referred to as being "directly on" or "directly connected" or "directly coupled" to another element, there are no intervening elements present. Spec. ,r 41 (emphasis added). Thus, consistent with Appellant's Specification, the phrase "the projecting members comprise post and stop combinations extending directly from an inner surface of the vertical walls" recited in claim 1 (Appeal Br., Claims App. (Claim 1) (emphasis added)) does not encompass a snap fastener extending from a diaphragm of a handle reinforcement that is heat-sealed to bag walls, as Schwarzkopf teaches. See, e.g., Schwarzkopf col. 4, 11. 17--44. Therefore, based on the foregoing, we do not sustain the rejection of independent claim 1, or the rejection of claims 6, 7, 21, 24, and 25 that depend from claim 1. Re} ection II Independent claim 9 recites features similar to those discussed above with respect to claim I-specifically, "[a] flexible food storage pouch ... comprising ... a closed bottom section[,] vertical walls extending up from the bottom section to form an internal storage volume[, and] ... a plurality of projecting members distributed along and extending directly from an inner surface of an upper section of the vertical walls." Appeal Br., Claims App. (Claim 9); see also id. at Claim 1. Although the Examiner rejects claim 9 based on Schwarzkopf in combination with Perrette, the Examiner relies on Schwarzkopf to disclose the claimed projecting members extending directly from vertical walls. See Final Action 7-9. Thus, we do not sustain the rejection of claim 9, and we do not sustain the rejection of claims 11, 12, 5 Appeal2017-007519 Application 13/765,279 15, 16, 22, 26, and 27 that depend from claim 9, for the same reasons we do not sustain the rejection of claim 1, supra. Rejection III Based on our review of the record, Appellant does not persuade us that the Examiner errs in rejecting claims 18, 23, 28, and 29 as obvious based on Wertheimer in combination with Miller. Thus, for the below reasons, we sustain the rejection. Appellant argues that "with the closed bottom of Wertheimer and the open bottom of Miller, it is unclear how the references could be combined- let alone a combination that would make obvious the claimed invention." Appeal Br. 16. This argument is not persuasive of error, however, because the Examiner clearly explains that rejection relies on Wertheimer [ to disclose] the claimed invention, except for the plurality of projecting members extending directly from an external surface of upper sections of the front wall[, and relies on] Miller [to disclose] that it is known in the art of rubber pouches to extend a projecting member (19) directly from an external surface of an upper section by integrally forming the projecting member from the same material as the front wall of the pouch. Answer 9 ( citation omitted). Appellant argues that "the combination of Wertheimer ( a heating bag) and Miller ( a [ s ]yringe [b Jag) is improper and could only be combined through impermissible hindsight. There is no suggestion, teaching, or motivation in either reference for the combination, and it would not be obvious ... to achieve the claimed flexible pouch." Appeal Br. 16. We disagree with Appellant, however. The Supreme Court has rejected the rigid requirement of demonstrating a teaching, suggestion, or motivation in the 6 Appeal2017-007519 Application 13/765,279 references to show obviousness. See KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 415-16 (2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017) ("KSR directs that an explicit teaching, suggestion, or motivation in the references is not necessary to support a conclusion of obviousness."). The Examiner's proposal-to form Wertheimer's projections integral with its pouch (Answer 9}-is disclosed by Miller, and provides predictable results. See KSR 550 U.S. at 416 ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). Appellant argues that the rejection is in error because [ c ]laim 18 requires "a plurality of projecting members extending directly from an external surface of upper sections of the front wall proximal to and below the opening, each of the projecting members comprising a compressible stop." This does not seem to be the case in Miller or Wertheimer. In Wertheimer, button 7 appears to be added to the envelope though an inner surface and an opening thereof. In F[igure] 4 of Miller, it appears that button 19 also does not [ extend] "directly from an external surface of upper sections of the front wall," as claimed. Appeal Br. 1 7. Appellant does not persuade us of error, however. As discussed above, the Examiner's rejection relies on Wertheimer [ to disclose] the claimed invention, except for the plurality of projecting members extending directly from an external surface of upper sections of the front wall[, and relies on] Miller [to disclose] that it is known in the art of rubber pouches to extend a projecting member (19) directly from an external surface of an upper section by integrally forming the projecting member from the same material as the front wall of the pouch. Answer 9 (citation omitted). Appellant does not persuade us that these findings are in error. Further, we agree with the Examiner that "it would 7 Appeal2017-007519 Application 13/765,279 have been obvious ... to integrally form the projecting members of Wertheimer from the same material as the front wall of the pouch such that the plurality of projecting members extend directly from the external surface of upper sections of the front wall, as in Miller," for the reasons we set forth above. See id. Appellant argues that Miller does not teach the claimed flexible pouch with its syringe bag, which essentially includes an open bottom. Applicant contends that the syringe bag of Miller used in the medical profession is not analogous art, since one skilled in the art would not consider Miller when making the claimed flexible pouch, which explicitly has a closed bottom. Appeal Br. 17. These remarks, however, are not sufficiently detailed to persuade us that Miller is non-analogous art. It is not until the Reply Brief that Appellant argues in detail why "the syringe bag of Miller and the heating bag of Wertheimer are not analogous art to the flexible pouch of claim 18. Even if Wertheimer were considered analogous art, Miller is not." Reply Br. 5; see also id. at 5---6. But, "[a]ny argument raised in the [R]eply [B]rief which was not raised in the [ A Jppeal [B]rief, or is not responsive to an argument raised in the [E]xaminer' s [ A ]nswer, ... will not be considered by the Board for purposes of the present appeal, unless good cause is shown." 37 C.F.R. § 41.41(b)(2). Appellant does not show good cause why the Reply Briefs detailed non-analogous-art argument should be considered. Therefore, we treat Appellant's argument in the Reply Brief as untimely. Appellant argues "claim 18 includes a plurality of projecting members and a plurality of receiving members, not taught by Miller. That is, Miller teaches a single button 19 and a single button hole 18." Appeal Br. 17. As set forth above, however, the Examiner finds that it would have been 8 Appeal2017-007519 Application 13/765,279 obvious to integrally form Wertheimer's multiple projecting members from a same material as a pouch wall. Answer 9. Thus, based on the foregoing, we sustain the rejection of independent claim 18, and the rejection of claims 28 and 29 that depend from claim 18, and which Appellant does not argue separately. With respect to claim 23 that depends from claim 18, Appellant argues that the rejection is in error because the claim "requires that 'the pouch and closure mechanism, including the projecting members and the receiving members, are formed from a single piece of reusable material.' Wertheimer and Miller simply do not teach or make obvious a pouch meeting such requirements." Appellant's argument is not persuasive, as we agree with the Examiner "it would have been obvious ... to integrally form the projecting members of Wertheimer from the same material as the front wall of the pouch such that the plurality of projecting members extend directly from the external surface of upper sections of the front wall, as in Miller," for the reasons we set forth above. Answer 9. We further agree with the Examiner that the rubber material forming the pouch in Wertheimer is a reusable material. Id. at 13. Thus, based on the foregoing, we sustain claim 23 's rejection. DECISION We REVERSE the Examiner's obviousness rejections of claims 1, 6, 7, 9, 11, 12, 15, 16, 21, 22, and 24--27. We AFFIRM the Examiner's obviousness rejection of claims 18, 23, 28, and 29. 9 Appeal2017-007519 Application 13/765,279 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 10 Copy with citationCopy as parenthetical citation